Personalized User Model LLP v. Google Inc.

Filing 634

Letter to The Honorable Leonard P. Stark from Karen Jacobs regarding Google's letter regarding PUM's deposition designations. (Jacobs, Karen)

MORRIS, NICHOLS, ARSHT

&

TUNNELL

LLP

1201 N ORTH M ARKE T S T RE E T
P.O. B OX 1347
W ILMINGT ON , D E LAW ARE 19899-1347
[phone]
[phone] FAX
KAREN JACOBS
[phone]
[e-mail]

March 9, 2014

The Honorable Leonard P. Stark
United States District Court
for the District of Delaware
844 North King Street
Wilmington, DE 19801
Re:

VIA ELECTRONIC FILING

Personalized User Model, L.L.P. v. Google, Inc.
C.A. No. 09-525 (LPS)

Dear Judge Stark:
On behalf of PUM, we write in response to Google’s letter of earlier today regarding
PUM’s deposition designations for the second day of trial. Google’s two-page supplemental
“explanation” is improper and contrary to the Court’s instruction at the Pretrial Conference that
the parties limit themselves to “one sentence” objections to deposition designations.
Furthermore, Google sent the text of its letter to PUM less than an hour and a half before the
parties’ joint submission was due while also reserving the right to make “additional edits” before
filing. To the extent, however, that the Court entertains Google’s arguments, we write to correct
the record.
Notably, Google does not, and cannot, contest that PUM’s designations were timely.
Instead it complains that PUM’s designations are “drastically different” from those disclosed in
the Pretrial Order. That is incorrect. PUM’s designations are not different, but rather a subset of
previous disclosures made when more issues, more prior art, more claims, and more accused
products were in the case. PUM’s disclosures were also made before the Court ruled on the
parties’ motions in limine and other issues, and at a time when PUM believed it may have as
many as 22 hours for its trial presentation rather than 17. Google feigns shock that PUM reduced
its designations “drastically,” but such reduction is not at all uncommon prior to, or during, trial.
PUM fully expects that Google will do the same and will not play in its case all of the 12-plus
hours of deposition testimony it designated, particularly given the fact that it plans to elicit
testimony from as many as 21 live witnesses. Although Google complains of the burden, this socalled “drastic” reduction of designations, if anything simplifies the task of providing
counterdesignations. Indeed, now a day later, Google has not pointed to any further designations

The Honorable Leonard P. Stark
March 9, 2014
Page 2

it wishes to make, suggesting that Google was more interested in complaining rather than
seeking any specific relief.
Second, the designations PUM disclosed today do not include any testimony on issues
that relate to later phases of the case. Although Google contends that PUM’s method is
inconsistent with the Pretrial Order, it nevertheless “does not object” so long as Google does not
get charged for time spent playing duplicative testimony “for completeness.” But there is no
reason the parties should be repeating counterdesignations. Google should not be permitted to
make overbroad counterdesignations that do not relate to the same subject matter, and then seek
to play them again later in the case.
Google’s position is also inconsistent with its own arguments on order of proof. It was
only four days ago that Google objected to PUM’s proposed order of proofs at trial, including
PUM’s proposal that Dr. Konig testify once and on all issues. (See D.I. 623.) PUM’s proposal
was based, in part, on the proposition that having Dr. Konig “called to the stand multiple times”
would result in “cumulative and disjointed testimony.” (Id. at 2.) Google protested and the
Court ultimately adopted Google’s position, finding that Dr. Konig’s testimony regarding
infringement, validity, and breach of contract “can be segregated.” (D.I. 627 at 2.) There is no
reason that the testimony of witnesses testifying via deposition cannot be handled the same way.
Moreover, as to Dr. Konig’s testimony, the Court cautioned Google that it would “not be
permitted to engage in redundant cross-examination.” (Id.) PUM believes that the parties can
similarly avoid designating redundant deposition testimony. In any event, Google should be
charged for all of the testimony it designates.
Respectfully,

/s/ Karen Jacobs
Karen Jacobs (#2881)
KJ/lm
cc:
Clerk of the Court (by hand)
All Counsel of Record (by e-mail)
8074722.2